Legal Aid Service Delivery in Rural and Remote Communities across Canada: Issues and Perspectives in the Context of COVID-19

Part C: Respondent Interviews

This part of the report outlines the findings from the 17 semi-structured interviews. The interviews included questions about legal services clients, the services that are provided, and the impacts of COVID-19. They are qualitative descriptions based on the experience of the persons interviewed.

Legal Services Users

Characteristics

This section presents key respondents’ descriptions of the demographic characteristics of typical legal aid clients in rural and remote areas. Indigenous people are identified as a primary clientele or group in virtually all jurisdictions, except for two eastern jurisdictions where overall Indigenous populations are small. Indigenous people form the dominant clientele group (over three-quarters) in the three northern territories and a significant clientele group in northern and more rural parts of most provinces. Interviewees reported that these Indigenous clients are usually young males ages 20 – 35 requiring criminal representation.

Seniors are often characterized as having proportionately higher legal aid needs in rural or remote areas than in urban areas. This is seen in part to be a result of the tendency for younger people moving to urban areas for employment or leaving temporarily to work in camps. In addition, in rural areas in the north, younger family members are often temporarily absent while working in camps. This means that seniors are unable to rely on younger members of their family for assistance in completing forms, accessing forms, using technology, or for transportation when they are no longer able to drive.

Interviewees also noted that women are a significant clientele, primarily in family law issues, and often in the context of abusive relationships and/or with significant economic challenges. In several jurisdictions, women with family law issues form the second most frequent category of applicant. In two jurisdictions they are the largest clientele group. One of these jurisdictions reported a high proportion of women in drug-related cases.

Immigrants were not noted as a significant client group in rural areas, except in three jurisdictions, two of which had sub-jurisdictions where there is significant agricultural fruit production. Similarly, LGBTQ2S+ individuals were not identified by respondents as a significant client group; however, this identifier is not part of any application process, so case volumes may be understated.

Legal Needs

The two highest categories of legal needs identified by interviewees (regardless of whether they are formally covered by legal aid) were criminal and family law cases, each of which was identified by approximately half the respondents. The most common criminal offences mentioned were assault, theft, break and enter, possession of stolen property, and shoplifting.Footnote34 Family matters often include domestic violence issues, with some respondents noting a possible increase in family violence as a result of COVID-19 public health restrictions. Child support was also an issue noted in many family matters.

Housing issues were emphasized by approximately a quarter of the respondents, with several factors that are involved:

  • A “tsunami of evictions” as COVID restrictions on evictions have been lifted.
  • The rise in housing values, and related increase in rental rates.
  • Homelessness that results in some cases when tenants lack the money to pay increased rents.
  • The rush to buy houses in rural areas to escape COVID.
  • People moving to rural areas because they can afford the rental costs. This has had a side-effect of increasing landlord and tenant matters generally in rural areas.

Housing issues can in many instances be seen as coming under the rubric of poverty law matters. Other issues related to poverty law include income assistance, workers compensation and employment insurance, all of which involve the need to access government services. Collectively these types of matters were mentioned by approximately a quarter of the respondents. The respondents felt that these problems are often exacerbated by the lack of government services in rural areas, the lack of public transportation and the lack of mobility generally of persons with little income. One jurisdiction holds “ID Clinics” to help individuals obtain ID cards. Service providers sometimes find that homeless individuals lose their cards because of their transient circumstances. Another jurisdiction reported a significant number of matters related to estates, in part a reflection of aging populations in rural areas.

Language

The degree to which the two official languages and various Indigenous languages are spoken varies considerably across the country. Since their frequency of use relates closely to service delivery practices in these languages, both aspects are dealt with in this section. On the West coast it is rare for Indigenous speakers to require translation, as most individuals have sufficient mastery of English. There is some translation of legal aid pamphlets into Indigenous languages. Migrant farm workers may occasionally require translation assistance.

In Alberta there is a small fund for hiring interpreters and translators in court, principally used for occasional cases involving immigrant workers. In other situations where Cree is required (e.g., in initial discussions) people in the community are often able to assist. Language needs are not considered a major issue in rural and remote areas of Saskatchewan, especially compared to urban areas. In some cases, individuals who speak neither official language will settle in rural communities and work in bars or small retail establishments, but their needs for translation services are considered minimal. There is a French legal clinic in partnership with French-speaking lawyers in the province, but there is not a significant demand for the service. In Manitoba CanTalk is used to access translators, especially in the north of the province. Counsel may take on cases requiring French, but they are less likely to do so if a trial is involved, so Legal Aid Manitoba provides an interpreter when necessary. Few judges can do trials in French, but at the Court of Appeal level, the court is better able to deal with such language requirements.

Ontario respondents felt it is rare to have translation requirements. Often family members can translate if, for example, the case involves an Ojibway speaker. Translators have also been used for Mexican Mennonite immigrants who speak Low German. There have been very isolated requirements for Spanish, Arabic or Urdu translation, which can be accessed through head office. Where a French speaker is required, a translator can usually be accessed from another clinic. In northern areas of Quebec, all services are available in French and English. Although currently there are no lawyers who speak Innuktitut, trials are conducted using translators where required. New Brunswick is a bilingual province, so cases can proceed in both official languages. In the one Indigenous community of Epsipoqtoq there are currently no Indigenous court workers or navigators. Similarly, in Nova Scotia there are pockets of Indigenous language needs, for which an interpreter can usually be provided at trial. In Nova Scotia there is adequate access to lawyers who speak French (either in Nova Scotian communities or in Moncton, which is considered accessible even though in New Brunswick) and judges in Nova Scotia are often bilingual. In PEI most francophones are bilingual.

There is a significant need for interpreters in remote areas of Labrador, especially in north coast communities where English is not a first language for many persons who speak Innuktitut or Innu-aimun (a dialect of the Cree language). In family court parties often need to bring their own interpreter. These needs also exist in slightly larger communities such as Happy Valley-Goose Bay (Southern Labrador) or Wabush (Western Labrador).

The North presents a varied picture in terms of language needs. In the Yukon, language does not appear as significant an issue for Indigenous individuals as it is in other jurisdictions, either in courts or in accessing other justice services. It can be more of an issue for French speakers in remote locations, but the need does not arise frequently. In the Northwest Territories, despite there being numerous Indigenous languages, the key informant for that jurisdiction estimated that less than a tenth of litigants present with a language barrier. Currently one lawyer speaks fluent Tlicho (a dialect spoken close to Yellowknife), and court workers are often available to assist with language needs.

In Nunavut, it was reported that 89% of residents speak either Innuktitut or Innuinaqtun, and 87% speak English. The respondent for this study estimated that three times per circuit there might be a session using concurrent translation, and occasionally as many as half of the sessions require it.Footnote35 The respondent noted that knowledge of legal language terminology among community-based translators is very low, so while they may be helpful for assisting with general translation needs, they are not equipped to handle translation in formal court procedures. On any given day in Nunavut there is a proceeding with concurrent translation. If it is a court proceeding, it will typically have a court translator. If it is simply a private meeting, a court worker may be used instead. Occasionally a community member will undertake this task and will point out where a concept may not be understood by a client.

Access/Technology

Respondents highlighted several key characteristics of clients who have the most difficulty with access to legal services and/or with technology.

The largest single observation about technical challenges to consumers of service does not relate to users’ inherent abilities, but to where they live in relation to the availability of Internet and wifi. All respondents emphasized that large areas in the north of the provinces or in the territories lack any Internet access. In some areas in Quebec and Manitoba there are currently plans to increase connectivity, but they may take several years to complete. There is also some hope that the StarLink satellite may effectively deliver broadband Internet over far wider areas than traditional cellular technology.

Legal services clients often have multiple problems that make effective use – or any use – of technology problematic. The first is that they simply cannot afford technological devices. As one respondent noted, “for people who have technology it’s amazing, but for those who lack technology, it’s a barrier.” One respondent in an eastern province estimated that up to 45% of clients do not have cell phones or computers. However, this pattern may vary from province to province; as noted earlier, a B.C. study found that up to 90% of Indigenous family legal aid clients have smart phones.Footnote36

The Saskatchewan respondent noted that before the pandemic many clients did not even have email addresses, but that situation has become less frequent. Also, the interviewee noted that before the pandemic “… everybody thought in-person service was best.” However, during the early days and weeks of the pandemic telephone usage increased significantly (although Zoom was felt by many to be too complex), and the greater use of telephone over in-person contacts has been maintained.

Seniors live in rural and remote areas in slightly higher proportions to overall population than in urban areas. According to key respondents, seniors also frequently lack the technological skills to use phones or computers in an effective way to overcome the disadvantage of distance.

An additional issue noted by several respondents is the lack of space and resulting lack of privacy for effective use of technology. One said that the provincial government in their jurisdiction is intending to expand a system of kiosks in the courts in which individuals can use their devices, but he felt it would be overwhelmed by the number of users, again compromising privacy.

Getting documents submitted and reviewed has remained a problem for many clients and service providers. One respondent said that they will often refer rural/remote clients to libraries to get documents scanned. When public services were shut down at times during the pandemic, even that solution was not possible, as libraries were often closed. The service-provider then had to explain to rural/remote users how to photograph and submit each page of a document separately, as most users lacked a printer with which to scan the entire document.

Service Provision

Challenges

Transportation is a key problem for many users who lack vehicles, and even for many who do have vehicles. This is because the distance to be travelled is often very significant, and because many locations in the north have only fly-in access. The lack of public and private transportation was identified in almost all jurisdictions as a primary obstacle to problem resolution, often second only to the legal matter itself. Even in some areas that would be described as rural, (e.g., in parts of Nova Scotia), a drive of two hours to a service location is not unusual, and for persons without a vehicle, the need to hitchhike could add considerably to access time. In more remote locations (e.g., Labrador) a visit to meet a lawyer (or for a hearing), involves also paying for a hotel. In some locations physical access is only by plane.

Partnerships with other agencies – both for transportation and for problem resolution – are key to providing necessary services in rural and remote areas. Prior to the pandemic in B.C., persons with a legal matter involving health issues (e.g., residential treatment) could sometimes use a coordinated transportation service. Also in B.C., a program called Community Partners placed workers in social agencies serving remote areas, which facilitated more effective referrals of legal problems to legal aid or assisted individuals to resolve issues on their own or with the help of other agencies.Footnote37 Ontario has also made effective use of partnerships with other community agencies to address issues that are common to both legal and social domains. These partnerships have included legal clinics, health and mental health centres, United Way, Choices for Change and Addiction, community centres and Indigenous Friendship Centres or band offices. As one respondent stressed, “with these types of partnerships we can develop deep, sophisticated referrals for clients.” In Northern Quebec, Indigenous health clinics are the most common location for fly-in lawyers and court workers to meet with clients or other persons with legal needs. Communication to arrange meetings is often through social media messaging.

In Saskatchewan, both the John Howard Society and Elizabeth Fry Society were mentioned as important resources for clients in prisons. The interviewee noted that a client’s legal problem may be “a drop in the bucket” compared to needs such as housing in remote areas. Partnerships with agencies serving those needs are critical (for example the organization Scattered Site in La RongeFootnote38 in the province’s north).

Informants in the three territories stated that Indigenous court workers are the primary source of assistance for persons with legal issues that are being brought to the courts. Mental health workers – where they exist – may also indirectly assist with legal issues that are impacting mental health.

In Nunavut, in addition to court workers who were described by the respondent as “the face of legal aid” in that territory, many communities also have a justice committee (for diversions of person with a criminal offence), and a few have specialized services (e.g., a spousal abuse service in Rankin Inlet and an “On the Land” program in Clyde RiverFootnote39). Communication to set up meetings is often by public radio, (but the purpose of the meeting – i.e., to discuss a legal matter – is never stated in the announcements on this medium).

All jurisdictions have some type(s) of PLEIFootnote40 services that help individuals to understand legal matters and issues, or to prepare for hearings. Except for some communication information sessions (e.g., at libraries), these services are not “delivered” to individuals person-to-person. They are therefore not limited by dissemination issues, but by people’s ability to use technology and undertake research. As noted in section 2.2, this is often problematic for many remote/rural clientele. Limited duration advice services exist in some jurisdictions. For example, New Brunswick has a family advice lineFootnote41 that provides two hours of legal advice by a lawyer related to family law matters.

One respondent noted that funding for special initiatives to address legal matters – e.g., a restorative justice program – is often provided only for a year, but these types of projects usually require several years to become established. Longer-term funding would therefore be more effective to create a sustainable program.

Funding and Organization of Service Delivery

This section explores the related themes of organization and funding of the delivery of legal aid to rural and remote areas in the provinces and territories.

For the most part, funding for legal aid in rural and remote areas is not differentiated from general funding to support delivery throughout the whole jurisdiction, including fly-in circuits to northern communities. Depending on the jurisdiction, this means funding is either from a provincial law foundation (funded from lawyer trust accounts) and/or provincial/territorial governments, and/or the federal government. One respondent said there has currently been more federal funding because of federal government assistance nation-wide through COVID-19 relief funds to organizations and individuals. At the same time, delivery expenses in that jurisdiction have decreased because there have been fewer in-person meetings.

In Manitoba, significant provincial funding has recently been directed towards the installation of video suites in various social agencies and First Nations communities so that lawyers can more readily use video conferencing. In some locations, lawyers have also been able to access video systems used for Mental Health Review Board hearings. Video suites are also expected to be installed in RCMP detachments. In criminal cases this may be helpful for victims, but some accused persons may feel vulnerable in that setting. In an eastern jurisdiction, video suites have been installed in women’s shelters for victims of family violence.

The following challenges identified by respondents are closely interrelated.

Lack of Lawyers to Serve Remote Communities

Many communities are too small to provide a geographic base in which lawyers can make a living. Even where there is a sizeable regional population, it is often too dispersed to attract lawyers. For example, one prairie jurisdiction has a population of 500,000 in its central region, but only 12 lawyers to serve it. This problem is exacerbated by the “greying” of the bar (mentioned by half of the respondents in the study) and in some cases early retirement due to COVID.

The lack of lawyers is pronounced in family law cases, which often require a lawyer for each side. A respondent in one small jurisdiction noted that lawyers are often pulled off family cases to attend to criminal cases, thus further lessening the overall availability of lawyers. Family law cases were also seen as less remunerative. A factor contributing to the loss of lawyers in Nunavut is the acute lack of housing in the territory. Even if applicants are on the list for housing for several years, they may not be successful, and therefore have to stay in sub-standard accommodation.

Several approaches have been used to address the lack of lawyers. The first – and most common – is to fly lawyers into communities on a regular circuit covering one or more remote communities. This approach is a necessary but expensive solution and can be problematic because of weather, and more recently because of reduced flights due to COVID. Accommodation can be a problem even in fly-in situations in the Yukon because there is competition with construction workers who also require housing. The fly-in expenses in Nunavik are less of a concern provincially because they are covered by the James Bay and Northern Quebec Agreement.

Several other approaches include:

  • Incentivizing lawyers to practice in smaller communities with a retention bonus over their base salary (in one jurisdiction amounting to an extra $1,000/month).
  • Using presumptive core funding from the province for a regional clinic that serves a wide area. To access individuals in more remote communities, the clinic can arrange to have service outlets over a larger dispersed area. With core funding the clinic is less constrained by cost-per-client considerations.
  • Recruiting legal aid lawyers in “a mindful way” that ensures they will fit in a rural or remote setting. In some jurisdictions there have been efforts to recruit law school applicants who have come from a rural background and expect to practice in their community of origin.

Lack of Resident Judges

A resident judge is one who resides in the area in which he/she is sitting as a judge. This issue is closely related to the lack of lawyers, as the lack of a resident judge makes it less attractive (and less remunerative) for a lawyer to locate in a community. With a resident judge, it is easier to get litigation matters scheduled in a timely manner. As one respondent said in regard to an isolated community,

there is no one there to move the judicial machine forward. You can’t just pop in to get a motion approved. If it’s a fly-in judge, he/she will cut you off just to make it to the return plane on time. It’s so hard for lawyers to get things done and sends a message that their work is not a valued part of the system.

Respondents did not discuss any recommendations to address this issue.

Communication with Clients

One respondent said that in the past lawyers were reluctant to communicate with clients unless they met in person. This placed a significant transportation burden on clients who lived remotely, and a time loss for lawyers if they had to travel to see the client. Since the pandemic there has been more flexibility, combined with the use of efficient technology. For example, one respondent said they were testing a private drop-boxFootnote42 mechanism that allowed them to connect with clients virtually at the click of a button, as well as record outcomes of the meeting. However, several respondents stressed that many clients do not have cell phones or Wi-Fi access, so partnerships with accessible community agencies (e.g., who can receive faxes of forms on behalf of clients) are often necessary. A respondent from a northern jurisdiction said that people in the bush often do not have phones, and the lawyer must physically search out the client in order to prepare for court.

Technology

The use of technology in relation to legal matters varies considerably depending on the user, purpose (transmitting documents or filing applications) and time-period (pre-COVID, COVID and post-COVID). The most fundamental divide is between clients’ varying levels of technological capacities. Many respondents suggested this capacity is a question of income, as many poorer clients in rural/remote areas cannot afford Wi-Fi access, computers, or smart phones. To the degree that their location is remote (many Indigenous reserves and northern areas) or even just rural, they may not have Wi-Fi access. There is a danger, therefore, that increased reliance on technology by service providers and the legal system will create a “digital divide” that disenfranchises the most needy and disadvantaged clients – the very clients legal aid is intended to serve.

Service providers in several jurisdictions have created private spaces (e.g., in libraries, parent legal centres, Friendship centres, legal clinics or other service agencies) in which individuals can be helped to access the Internet or establish a video conference in order to connect with a lawyer, E-sign documents or communicate with court officials or at short hearings. One respondent noted that although libraries are often excellent partners for facilitating copying and transmitting documents, in smaller communities they may lack sufficient privacy for meetings between clients and lawyers who have travelled to the community. As an alternative, charitable organizations like the Salvation Army may have small but more private meeting spaces. However, for some clients there may be a stigma attached to meeting at the Salvation Army.

In some northern jurisdictions where bandwidth is a major challenge, Indigenous Courtwork Program offices are the communication hub, and usually have phone, fax, email, and webcam capabilities. The pandemic facilitated a transition from requiring in-person court appearances to allowing phone-in or video conferencing for short appearances (e.g., a bail hearing or arraignment) and for many consultations with lawyers. Although there are some pressures to return to pre-pandemic modes of appearance, most respondents interviewed for this study felt that this transition is likely to become permanent, as short remote appearances or conferences have reduced costs enormously in many cases, especially in relation to fly-in court appearances.

Although there was awareness among respondents of projects to increase Internet reach, especially in the western half of Canada, in all jurisdictions there was a lack of clarity about the extent and anticipated time to completion of these projects.

Monitoring and Evaluation

Respondents were asked if sufficient research was being undertaken and/or if adequate data systems were available for effective monitoring and evaluation of service provision in rural and remote areas. Overall, their responses suggest that although some elements of service delivery are tracked in most jurisdictions, the purpose is usually for file maintenance, rather than evaluation. Furthermore, these data do not usually distinguish service delivery to remote or rural users from urban users.

Some exceptions are the Community Partners evaluation in BC,Footnote43 and Alberta Law Foundation’s study by Flora Stevenson on remote legal services to low-income Albertans.Footnote44 In all other southern jurisdictions, the response was that there was no focus on rural/remote issues specifically, and in general, any data of case or client characteristics has been “mined” and analyzed to a very limited degree. In the Yukon, a new data system and reporting structure is being created and should be providing three years of data later in 2022 that will allow Yukon Legal Services to evaluate the changing seriousness/complexity of legal matters. It is not clear whether the data will be able to distinguish rural/remote delivery, but locations other than Whitehorse and Dawson City will likely fit this definition. Similarly, in the Northwest Territories, a new database was launched in 2021, but staffing issues may limit the capacity to undertake more refined analyses for several years. The communities and overall territory of Nunavut are remote, but at present there is very limited reporting capacity.